When student journalists at New York’s Ithaca High School clashed with their principal over the right to publish an editorial cartoon mocking their school’s unrealistic sex-education courses, they believed the law was on their side.

Because their newspaper, The Tattler, had operated essentially free from administrative censorship for 100 years, and was acknowledged in written school policy as a “forum” for student expression, students were convinced they had the benefit of the highest possible First Amendment protection.

Their confidence was misplaced.

A federal appeals court sided with their principal, ruling that the editorial cartoon — which used scribbled stick-figure couples in exaggerated sexual poses to mock the effectiveness of Ithaca High’s sex-education curriculum — could lawfully be censored.1

The constitutional protection that Robert Ochshorn and his fellow editors believed they enjoyed atThe Tattler proved to be an illusion. Regardless of the official recognition of The Tattler as a “forum,” three judges with the Second Circuit U.S. Court of Appeals gave school administrators as much control over the newspaper as if no “forum” existed at all.

Since the U.S. Supreme Court’s Hazelwood ruling2 drew a road map for obtaining heightened First Amendment recognition in student media, hundreds of student publications have attempted to follow it, invoking the incantation “public forum.” Recent legal developments, however, have cast grave doubt on the value and durability of designating a publication — or any piece of government property — as a “forum.” Because it is uncertain whether a “forum” policy offers reliable protection, those seeking to insulate their publications against censorship may be better served by choosing clearer, more explicit policies removing the need for difficult constitutional interpretations.

This article will examine what it means (or doesn’t) for a publication to be deemed a “forum,” and — in light of recent court rulings that appear to undermine the value of forum status — will suggest more reliable ways to protect student editorial independence.

Birth of the “public forum”

The First Amendment speaks in absolute terms — “Congress shall make no law…” — when it comes to government’s ability to regulate speech. In practice, however, restrictions on speech can and do persist despite constitutional challenges.

Whether a person can express himself freely on his own property is a different question from whether a person is entitled to use government property as a platform for speech. When the government is acting as a “landlord” to manage the use of its own property, the First Amendment allows greater leeway to regulate what is said — even if the very same speech would be legally protected on private property.

To determine the level of the government’s authority over speech on government property, the Supreme Court developed a framework known as the “forum doctrine.” The forum doctrine helps courts resolve difficult cases in which the rights of a speaker to convey a particular message might bump up against the government’s interests in managing public property — for example, the government’s interest in making sure that speech does not interfere with other citizens’ use of the property for its intended purpose.

The forum concept recognizes that not all government property can be equally open for individual speakers’ expressive use. The same political rally that might be perfectly at home in a county park would be out of place in the reading room of the county library. Even though both are publicly owned facilities, the park is recognized as a “traditional public forum” — a place amenable to wide-open expressive use — while the inside of the library is not.

Once property is identified as a “public forum,” any limitation on a speaker’s message will be extremely hard to defend. If a speaker is banned from speaking, or is punished after-the-fact for his message, the speaker will have a strong argument that the government violated his constitutional rights. The burden to justify restricting a speaker’s message in a public forum is so high that the government regulator will almost always lose.

This is where it gets complicated. In a 1983 ruling involving the use of teacher mailboxes in an Indiana school district, the Supreme Court recognized that government property sometimes is “designated” for communicative use by members of the public. When that happens, the government has created a public forum — which means regulators cannot play favorites and entertain only the speech they agree with.3

The Supreme Court has not specified exactly what is necessary for property to become a designated forum, but it has given judges two factors to consider in deciding whether a forum has been created:

The “policy and practice” of the agency that operates the property.

The “nature of the property and its compatibility with expressive activity.”4

A forum can be either a physical space (like a bulletin board) or can be a “metaphysical” space (like the student activity fee system or student election system at a college).5

Once a forum is designated for expressive use, speech within that forum gets the same extra-strength legal protection as speech in a park or in another “traditional” public forum. That means any restriction on the content of a speaker’s message will be presumed to be unconstitutional, and will be struck down unless the restriction is absolutely necessary to further an essential government priority.

And this is where it gets even more complicated. Government property sometimes is understood as falling within one of three categories — traditional public forum, designated public forum, or non-forum — but in recent years, a fourth category has arisen: The “limited” public forum.

Courts in different parts of the country are, in the words of one author, “strikingly divided” over what it means for property to be a limited public forum.6

Some judges simply use “limited” as almost interchangeable with “designated” public forum, with the same high level of protection against government censorship. But other judges believe it is not really a forum at all, and that speakers in a “limited” forum get no greater protection than those using “non-forum” property.7 The Supreme Court has sent unclear signals, leaving the law in disarray.8

Justice Anthony Kennedy’s majority opinion in the 1995 Rosenberger case — a case generally beneficial to student rights — appears to be the source of much of lower courts’ confusion over what it means to be a limited public forum.

In discussing the student fee system at the University of Virginia, which the Court appeared to regard as a limited public forum, Kennedy wrote: “The State may not exclude speech where its distinction is not ‘reasonable in light of the purpose served by the forum,’ nor may it discriminate against speech on the basis of its viewpoint.” That statement accurately describes the level of First Amendment protection that applies to a non-public forum.

Kennedy did not, however, claim to be overruling Supreme Court precedent saying that speech gets much more protection in a limited public forum than in a non-public forum. It is probably best to understand his confusing statement as saying that, on any government property, whether it is a forum or not, regulations must be reasonable and viewpoint-neutral.9

The public forum goes to school

The property of a school, including student publications created as part of school-sponsored activities, is not a traditional public forum. Therefore, student media can attain forum status only by designation.

The Supreme Court first applied the “forum” concept to student speech in the case Hazelwood School District v. Kuhlmeier, in analyzing the First Amendment claims of student journalists whose principal censored their newspaper:

“[S]chool facilities may be deemed to be public forums only if school authorities have by policy or by practice opened those facilities for indiscriminate use by the general public … or by some segment of the public, such as student organizations. … If the facilities have instead been reserved for other intended purposes, communicative or otherwise, then no public forum has been created, and school officials may impose reasonable restrictions on the speech of students, teachers, and other members of the school community.”10

The Court found that the school had not opened up the student newspaper, Spectrum, for “indiscriminate use” and had operated it primarily as “a supervised learning experience for journalism students.”11 Consequently, no public forum had been created. (Though the newspaper had published a “policy statement” declaring the paper to be student-run, the justices were more persuaded by the school’s actual practice of involving the adviser and principal in editorial decisions.) Because the Spectrum was not a forum, the principal was free to censor it for any basis “reasonably related to legitimate pedagogical concerns.”12

Although student journalists lost their censorship case in Hazelwood, the majority opinion can be seen as a road map toward greater editorial independence. If a school allows “indiscriminate” use of the newspaper — “by policy or by practice,” meaning that a written policy may not be necessary if the school’s actual practice is to refrain from censoring — then a forum exists, and speech within the forum is entitled to heightened constitutional protection.

Hazelwood opened a gate that editor Katy Dean drove through in her 2004 censorship case, Dean v. Utica.13

In the Dean case, a federal district judge found that a Michigan high school maintained its student newspaper, Arrow, as a limited public forum. The judge looked to a checklist of “intent factors” to decide whether the paper was operated as a forum, but was most influenced by the evidence that, for 25 uninterrupted years, no administrator had exercised prior review.14 Therefore, the paper was entitled to the benefit of public forum status.

(The judge then went on to say that, even if Hazelwood did apply, the school’s decision to remove an accurate article about a lawsuit against the school was solely motivated by image control and was unreasonable.15)

In an earlier case involving a college yearbook, the federal Sixth Circuit likewise concluded that a student publication was a limited public forum in which the college had minimal ability to control content.

The court in Kincaid v. Gibson decided that Kentucky State University violated the First Amendment rights of student editors in refusing to distribute a yearbook, The Thorobred, because administrators subjectively disliked the students’ choice of themes, colors and photos.16

The judges rejected Kentucky State’s contention that, to be a forum, a publication must be thrown open to “indiscriminate” public use. It was enough, said the court, that KSU had a policy and practice of giving the student editors “exclusive control” over the yearbook.17

Because The Thorobred was a limited public forum, the judge ruled, any restriction on the students’ choice of editorial content was unlawful unless “narrowly drawn to effectuate a compelling state interest(.)”18 This is a significantly higher burden than a college would have to satisfy if the property was a non-forum.

But in the Ithaca High School case, the Second Circuit U.S. Court of Appeal took a more expansive view of school censorship authority in a limited public forum.

The Ochshorn case was not primarily about the “forum” nature of the newspaper at all. The decisive issue was the Second Circuit’s view that the Tattler editorial cartoon qualified as “lewd” speech. The Supreme Court recognized in Bethel Area School District v. Fraser that “lewd” speech to an audience of K-12 students is unprotected by the First Amendment.19

Secondarily, the Ochshorn court went on to address whether the forum status of the Tattler limited the school’s censorship authority. The judges concluded that the Tattler could not be a true “public forum” because history showed that the principal and adviser “exercised a substantial degree of control over the paper’s creation and content.”20 The paper was therefore no more than a “limited” public forum, and – in the view of the Second Circuit – was subject to the Hazelwoodlevel of school control.

The Ochshorn judges almost certainly got it wrong. If a school has the authority to regulate speech in any reasonable manner in a limited public forum, then a limited public forum is meaningless. Even in a non-forum — government property that is not open to the public for speech at all, such as a prison or a military base — the First Amendment requires that regulations be reasonable. A limited public forum ought to require something more.

Judge Tarnow certainly thought so in the Dean case. As he explained, “The Hazelwood standard is inapplicable where a school-sponsored publication is a limited public forum.” 21

Even though it is erroneous, Ochshorn is now the law; the Supreme Court declined to review it, so the case is final.22 Although the Second Circuit sets precedent only for the states of New York, Vermont and Connecticut, student media cases so rarely go to court that the Ochshorn case may prove to be influential even beyond the circuit. At the very least, it highlights the risk of relying on forum status to provide a meaningful check on school censorship authority.

The designated forum: How durable?

Even if a publication succeeds in attaining “public forum” designation, it’s possible that a school or district can revoke that status more-or-less at will.

Any action by the government intended to punish or deter lawful speech can violate the First Amendment. The Supreme Court has said that even canceling a government employee’s scheduled birthday party might qualify as unlawful retaliation if meant to inhibit free expression.23

Changing the status of a student publication logically should qualify as illegal retaliation — if a cause-and-effect can be shown between removing the forum designation and something that student journalists published (or tried to publish). A successful challenge would require a judge to scrutinize the school’s motive for the change.

However, at least some court interpretations indicate that government agencies can freely close formerly public forums for any reason at all — even if motivated by a particular speaker’s message. If that is the case, then a school bent on censoring a newspaper, yearbook or magazine might simply “un-designate” the publication as a forum first.

Federal courts have struggled with the question of when regulators can stop operating property as a public forum. The struggle is most apparent in the wavering of the federal Ninth Circuit, covering nine western states.

In a 2000 case involving a portion of a national forest in Idaho that was closed to environmental protesters, the Ninth Circuit scrutinized the government’s closure decision to make sure that it was neutral as to the protesters’ message and that it was narrowly tailored to restrict no more speech than necessary.24 In other words, the judges believed that a decision to close a formerly open designated forum could be a constitutional violation if the closure had an ulterior motive.

But more recently, the court has retreated from that view. In a case brought by antiwar and poverty-rights organizations challenging a city’s restrictions on protests, the Ninth Circuit declined to consider First Amendment claims based on a city policy of selectively allowing certain types of banner displays on public streets.25

While the judges agreed that the streets had been designated as a public forum when the city agreed to let community organizations post banners, they decided that the groups no longer had a First Amendment claim because the city had repealed the banner policy and no longer allowed anyone to put up protest signs — closing the formerly public forum. The judges did not consider whether the closing itself might have violated the First Amendment, simply saying that a city may close a designated forum “whenever it wants.”26

A handful of federal district courts have ruled that a speaker who shows that the forum was yanked out from under him to prevent him from speaking has a valid constitutional claim. In one notable example, the Ku Klux Klan was allowed to pursue a First Amendment claim after the city of Kansas City decided to discontinue a public-access cable TV channel rather than continue airing the Klan’s racially offensive broadcasts. “A state may only eliminate a designated public forum if it does so in a manner consistent with the First Amendment,” a federal district judge ruled.27

Neither the Supreme Court nor the federal courts of appeal, however, have explicitly recognized a claim for “retaliatory forum closure,” and at least a few appellate courts have decided that no such claim exists.

The most recent court to confront this issue was the Richmond, Va.-based Fourth Circuit U.S. Court of Appeal. It arose in the context of Confederate flag banners that a local Sons of Confederate Veterans chapter wanted to display on city flagpoles throughout Lexington, Va.28

The city had made the flagpoles available to other groups, but after receiving the request from SCV, the city changed its policy, fearing the banners would be seen as racially inflammatory. The SCV claimed that the change — closing a formerly “designated” public forum — violated the First Amendment. But the appeals court disagreed.

A three-judge panel decided in July 2013 that no First Amendment violation occurred, because the city was free to stop offering a designated forum at any time and for any reason. The First Amendment, Judge Robert Bruce King wrote, does not require the government to act with “clean hands.”

“[I] appears that the City experimented with private speakers displaying flags on the City’s standards, and that effort turned out to be troublesome. It was entitled… to alter that policy,” Judge King wrote.29

Consequently, in the view of the Fourth Circuit, a government agency can freely take away the forum status from a piece of public property even if the change is intended to silence a specific speaker or a specific message.

Since the Supreme Court has said that even a relatively minor slight can be unlawful retaliation if meant to inhibit the exercise of free-speech rights, the decision to declare a piece of public property entirely off-limits for expression certainly seems to qualify. Why courts have hesitated to recognize a retaliation claim in such situations is somewhat mystifying.

It may be because the closure affects all potential speakers so that the deprivation is not sufficiently personalized to any one speaker. Or it may be deference to the spending priorities of government policymakers, whose discretion might be compromised if forced to maintain property they can no longer afford.

Whatever the reason, it’s possible that forum status can lawfully be revoked at any time and for any reason — even a retaliatory or content-motivated reason. It’s therefore risky for a student publication to rely on a “public forum” policy to provide enduring legal protection.

Freedom beyond the forum

If simply labeling a publication a “public forum” does not guarantee safety from censorship, what does?

State laws limiting the censorship discretion of school officials are on the books in seven states (and in an eighth, Illinois, at the college level only), and three jurisdictions — Pennsylvania, Washington and the District of Columbia — have given students enhanced press freedom through Board of Education rules.30 In each instance, the permissible grounds for censorship are spelled out in some detail.

Iowa’s Student Free Expression Law, enacted in 1989 — the year after Hazelwood — is an especially clearly worded example that can serve as a model. It lists five categories of prohibited speech in student media — obscenity, libel, or material that encourages students to break the law, violate school rules, or substantially disrupt school operations – and then concludes: “There shall be no prior restraint of material prepared for official school publications except when the material violates this section.”31

A school-district regulation (or, lacking that, a building-level policy at the school) that tracks the wording of Iowa’s law can avoid dispute over the meaning of “designated public forum.” By laying out the exclusive grounds for a school or college to override the decision of student editors, such a policy minimizes uncertainty and conflict.

When a federal appeals court surprisingly extended the Hazelwood level of censorship authority to college publications in 2005,32 dozens of colleges across the country reacted by enacting “public forum” policies to blunt the impact of the decision. The best of these policies went further than simply reciting “public forum” and specified that students may publish the lawful editorial content of their choosing.

The University of Arizona’s “Governing Statement” for student media provides one excellent example.33 The Statement provides in part:

“The student press at the University of Arizona is free of censorship and advance approval of content. Student editors, managers and news directors must be free to develop their own editorial policies, content, programming and news coverage. An independent and active press — print, online and broadcast — is a basic right in a free and democratic society and is valuable in promoting the development of students as socially responsible persons. … Students alone are responsible for the content, character and design of their publications, and students alone are responsible for their broadcast programming, consistent with FCC regulations.”

An unequivocal statement of student editorial control, ideally one enacted by vote of the governing body of the school or college, is the student media’s best assurance of safety from censorship if a disagreement arises.

Conclusion

While attaining status as a public forum is a symbolically meaningful gesture, it is uncertain how much weight a court will put on forum status. Making sense of the distinction between a “limited” and “designated” public forum has been confusing even for Supreme Court justices. It asks too much to expect a high-school principal to be a more proficient constitutional scholar than a Supreme Court justice.

In light of the damaging ruling in the Ochshorn case, in no event should a student-media policy use the phrase “limited” public forum. Rather, where possible, student media should be referred to as a “designated” public forum. But it probably is unsafe to stop there.

While it’s fine to retain the phrase “public forum” for whatever First Amendment benefit it may provide, an ideal student-media policy will go further and will precisely define the limits of school censorship authority in a way that everyone can understand.

Endnotes

Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U.S. 788, 802 (1985). The Court in Cornelius indicated that simply refraining from exercising censorship authority alone probably is not enough to create a public forum; rather, there must be some evidence of an intent to open up the property for expressive use. See id.

See id. at 332-34. In his article, Prof. Ha described the federal Second and Fourth circuits as most reliably finding heightened speech protections in limited public forums — but his article came before the Second Circuit Ochshorn ruling. Other circuits, notably the First and Ninth, appear to take the view that speech in a “limited” forum may be regulated to the same extent as if no forum existed at all.

See id. at 326-27.

Even more unhelpfully, Justice Thomas’ 2001 majority opinion in Good News Club v. Milford Central School parroted the misleading passage from Rosenberger, reinforcing the impression that the government may freely regulate speech in a limited public forum to the same extent as in a non-forum. 533 U.S. 98, 106-07 (2001).

Hazelwood, 484 U.S. at 267 (internal quotes and citations omitted).

Id. at 270.

Id. at 273.

345 F.Supp.2d 799 (E.D. Mich. 2004).

Id. at 807-09.

Id. at 814.

236 F.3d 342 (6th Cir. 2011) (en banc).

Id. at 353.

Id. at 354.

478 U.S. 675 (1986).

Id. at 539. The judges also noted that the school provided funding and office space to the newspaper, that the school paid the adviser’s salary, that the newspaper bore the school’s name and insignia, and that at least one parent believed the paper to be the official voice of the school because she filed a complaint over editorial content with the district, not the editors. Id. at 541.